Weekly Update Volume 41, Issue 32

11/14/2011

LITIGATION

NATURAL RESOURCES, NEPA:

The Tenth Circuit affirmed a lower court decision dismissing a lawsuit challenging the Forest Service's approval of a ski area improvement project near Aspen, Colorado. A conservation group alleged that the Forest Service violated NEPA by approving the project without examining certain cumulative effects--namely, effects on water resources, endangered fish, forest habitats, and other resources--and without assessing the impacts of the construction of a new village as a cumulative action. But except for the issue of water depletion, the group failed to exhaust its claims at the administrative level. Claims cannot be "only vaguely and cryptically referred to, if at all, during the administrative appeal." Here, the group merely included its claims in long lists without expounding on the significance of the proposed impacts, or it described them vaguely as "other impacts." And although it did exhaust the water depletion issue, it failed to properly preserve it before the lower court. In fact, the group gave minimal, if any, attention in the lower court to the claims they raised on appeal. Ark Initiative v. United States Forest Service, No. 10-1473, 41 ELR 20336 (10th Cir. Nov. 8, 2011).

NATURAL RESOURCES, NEPA:

A district court upheld the U.S. Forest Service's environmental review of a coal mine expansion project in the Grand Mesa, Uncompahgre, and Gunnison National Forests. An environmental group argued that the final EIS failed to adequately consider methane capture and flaring as reasonable alternatives to venting or as potential mitigation measures. But the Forest Service consulted with the Mine Safety and Health Administration (MSHA), the agency with final authority over mine safety issues, regarding a proposed flaring system, and the MSHA concluded that there were too many unanswered questions to render it an approvable alternative to venting. In addition, the Forest Service concluded that capture of the methane was not feasible because of the legal complexities involved in leasing the gas and the logistical and economic challenges involved in putting the methane to beneficial use. Accordingly, it was reasonable for the Forest Service to conclude that flaring and methane capture was impractical. And because the Forest Service did not act arbitrarily and capriciously in ruling out flaring and capture as feasible alternatives, it was reasonable for it not to provide an extended discussion of these methods as possible mitigation measures. The group also argued that the final EIS failed to adequately analyze the cumulative impacts of methane venting on climate change. The Forest Service stated that it could not provide an estimate of the project's impact on global climate change because of the lack of appropriate models and research. Because the group failed to identify any method that would enable the Forest Service to describe with particularity how the project would contribute to overall climate change, the group failed to carry its burden to show that the Forest Service's actions were arbitrary and capricious. WildEarth Guardians v. United States Forest Service, No. 08–cv–02167, 41 ELR 20338 (D. Colo. Oct. 31, 2011) (Krieger, J.).

WATER, CLEAN WATER ACT:

A district court denied a sand and gravel company's motion to dismiss environmental and citizen groups' CWA action against it for discharging stormwater associated with industrial activity from one or more point sources at its facility to a river without a NPDES permit. The company argued that the court lacked subject matter jurisdiction because the CWA does not include facilities with the SIC code of the type it operates. It claimed that the facility is not an industrial facility under the CWA; rather, it is a distribution facility that simply stockpiles processed materials for a short period of time until they can be distributed to various concrete batch plants or sold to a third party. Thus, none of the stored materials are raw material subject to industrial stormwater permitting under the CWA. But based on the parties' arguments and evidentiary support, the court was unable to determine at this stage of the litigation whether the facility is or is not an industrial facility. Neither CWA §402(p) nor its implementing regulations plainly and unambiguously require that the facility at issue be classified under a particular SIC group. California Sportsfishing Protection Alliance v. Shamrock Materials, Inc., No. C11–2565, 41 ELR 20337 (N.D. Cal. Nov. 2, 2011) (James, J.).

HAZARDOUS & SOLID WASTE, CERCLA:

A district court granted in part and denied in part the government's motion to dismiss a company's action for damages and declaratory relief in connection with dioxin contamination at the Centredale Manor Superfund site in Connecticut. The government argued that the company could not bring a CERCLA §107(a) claim for cost recovery because, pursuant to administrative settlements it has entered into with EPA, §113(f) contribution is the company's exclusive remedy. But the company did bring a §113(f) action, and it is entitled to plead a §107 claim in the alternative to ensure that it will be able to recover for its cleanup efforts at the site. Accordingly, the court denied the government's motion to dismiss the §107 claim. The court, however, granted the government's motion to dismiss the company's equitable indemnity claim. Regardless of whether its claim sounds in tort or contract, the company failed to show a waiver of sovereign immunity. The court, therefore, lacks jurisdiction. In addition, the court dismissed without prejudice the company's right to assert divisibility. Emhart Industries, Inc. v. United States Department of the Air Force, No. 11-023, 41 ELR 20334 (D.R.I. Oct. 31, 2011) (Smith, J.).

HAZARDOUS & SOLID WASTE, CONTRACT LAW:

The Court of Federal Claims held that the U.S. government is liable for costs an oil company incurred cleaning up contamination stemming from the production of aviation gasoline at its Baytown, Texas, and Baton Rouge, Louisiana, refineries during World War II. In the early 1940s, the company's predecessors entered into contracts with the government to sell the "avgas" directly to the United States. The contracts require the government to pay for any new or additional "taxes, fees, or charges" that the companies may be required to pay in connection with its production, manufacture, sale, or delivery of avgas. In the 1980s and 1990s, Louisiana and Texas ordered the company to clean up the site. The company therefore filed suit against the federal government for reimbursement of its cleanup costs. The government claimed that its liability only covers costs incurred during the performance of the contract. But the court disagreed. The timing of the cleanup charges has no bearing on the government's liability to cover costs that are causally related to avgas production. The very purpose of the contract clause at issue was to remove the potential risks any reasonable producer would be reluctant to take on. To now argue that the guarantee was limited in time while the risks are now doing damage is inconsistent with the whole purpose of the clause. Exxon Mobil Corp. v. United States, Nos. 09-265C, -882C, 41 ELR 20335 (Fed. Cl. Oct. 31, 2011) (Smith, J.).

EPA delegated authority to West Virginia to implement and enforce NESHAP and new source performance standards. 76 FR 69268 (11/8/11).

EPA determined that the coal-fired Portland generating station in Northampton County, Pennsylvania, is emitting air pollutants that impact New Jersey in violation of the interstate transport provisions of the CAA and established limitations and compliance schedules to reduce sulfur dioxide emissions. 76 FR 69052 (11/7/11).

EPA entered into a proposed administrative settlement under CERCLA that requires the settling parties to pay $45,300 in U.S. response costs incurred at the Tracy Lead Battery Superfund site in Tracy, Minnesota. 76 FR 69733 (11/9/11).

TOXIC SUBSTANCES:

EPA announced a final NPDES general permit for point source discharges from the application of pesticides to waters of the United States. 76 FR 68750 (11/7/11).

EPA Region 10 issued effluent limits for six substances under the NPDES general permit for oil and gas exploration, development, and production facilities in state and federal waters in Cook Inlet, Alaska. 76 FR 68749 (11/7/11).

WATER:

EPA proposed to approve revisions to New Mexico's public water system supervision program. 76 FR 69734 (11/9/11).

United States v. Williams Four Corners, LLC, No. 1:11-cv-02846 (D. Colo. Nov. 1, 2011). A settling CAA defendant responsible for leaks at the Ignacio Gas Plant and operating permit violations at the Ute E Compressor Station in La Plata County, Colorado, must pay a $50,000 civil penalty, must implement an enhanced leak detection and repair program at the Ignacio plant, and must obtain minor source permit coverage for the Ute E station. 76 FR 69285 (11/8/11).

United States v. E.I. Du Pont de Nemours & Co., No. 1:11-cv-01057-UNA (D. Del. Oct. 31, 2011). A settling CWA defendant responsible for violations at its titanium dioxide production facility in Edge Moor, Delaware, must pay a $500,000 civil penalty to the United States and Delaware and must perform a comprehensive engineering study of the wastewater treatment plant and its collection system. 76 FR 68788 (11/7/11).

S. 363 (land use), which would authorize the Secretary of Commerce to convey certain NOAA property to the city of Pascagoula, Mississippi, was passed by the Senate. 157 Cong. Rec. S7390 (daily ed. Nov. 10, 2011).

Committee Action

S. 363 (land use) was reported by the Committee on Commerce, Science, and Transportation. 157 Cong. Rec. S7187 (daily ed. Nov. 8, 2011). The bill would authorize the Secretary of Commerce to convey certain property of NOAA to the city of Pascagoula, Mississippi.

Bills Introduced

S. 1810 (Feinstein, D-Cal.) (water) would authorize improvements to flood damage reduction facilities adjacent to the American and Sacramento Rivers near Sacramento, California. 157 Cong. Rec. S7155 (daily ed. Nov. 7, 2011). The bill was referred to the Committee on Environment and Public Works.

S. 1812 (Begich, D-Alaska) (energy) would amend the Alaska Natural Gas Pipeline Act of 2004 to promote the availability of natural gas to North American markets. 157 Cong. Rec. S7155 (daily ed. Nov. 7, 2011). The bill was referred to the Committee on Energy and Natural Resources.

S. 1815 (Alexander, R-Tenn.) (air) would codify and delay the implementation of and compliance dates for a final rule relating to interstate transport of air pollution. 157 Cong. Rec. S7155 (daily ed. Nov. 7, 2011). The bill was referred to the Committee on Environment and Public Works.

S. 1836 (Menendez, D-N.J.) (water) would amend the Oil Pollution Act of 1990 to clarify that the Act applies to certain incidents that occur in water beyond the exclusive economic zone of the United States. 157 Cong. Rec. S7294 (daily ed. Nov. 9, 2011). The bill was referred to the Committee on Environment and Public Works.

S. 1845 (Wyden, D-Or.) (energy) would amend the Internal Revenue Code of 1986 to provide for an energy investment credit for energy storage property connected to the grid. 157 Cong. Rec. S7367 (daily ed. Nov. 10, 2011). The bill was referred to the Committee on Finance.

S. 1851 (Merkley, D-Or.) (energy) would authorize the restoration of the Klamath Basin and the settlement of the hydroelectric licensing of the Klamath Hydroelectric Project in accordance with the Klamath Basin Restoration Agreement and the Klamath Hydroelectric Settlement Agreement. 157 Cong. Rec. S7367 (daily ed. Nov. 10, 2011). The bill was referred to the Committee on Energy and Natural Resources.

H.R. 3379 (Berg, R-N.D.) (air) would amend the CAA to provide states increased flexibility in implementing standards through SIPs. 157 Cong. Rec. H7397 (daily ed. Nov. 4, 2011). The bill was referred to the Committee on Energy and Commerce.

H.R. 3388 (Langevin, D-R.I.) (water) would amend the Wild and Scenic Rivers Act to designate a segment of the Beaver, Chipuxet, Queen, Wood, and Pawcatuck Rivers in the states of Connecticut and Rhode Island for study for potential addition to the National Wild and Scenic Rivers System. 157 Cong. Rec. H7397 (daily ed. Nov. 4, 2011). The bill was referred to the Committee on Natural Resources.

H.R. 3391 (Pingree, D-Me.) (toxic substances) would provide for the establishment of a national mercury monitoring program. 157 Cong. Rec. H7397 (daily ed. Nov. 4, 2011). The bill was referred to the Committee on Energy and Commerce.

H.R. 3393 (Rivera, R-Fla.) (hazardous & solid waste) would amend the Oil Pollution Act of 1990 and the Federal Water Pollution Control Act to impose penalties and provide for the recovery of removal costs and damages in connection with certain discharges of oil from foreign offshore units. 157 Cong. Rec. H7398 (daily ed. Nov. 4, 2011). The bill was referred to the Committee on Transportation and Infrastructure.

H.R. 3396 (Walsh, R-Ill.) (climate) would abolish the Office of Polar Programs of the National Science Foundation. 157 Cong. Rec. H7398 (daily ed. Nov. 4, 2011). The bill was referred to the Committee on Science, Space, and Technology and the Committee on Appropriations.

H.R. 3398 (Thompson, D-Cal.) (energy) would authorize the restoration of the Klamath Basin and the settlement of the hydroelectric licensing of the Klamath Hydroelectric Project in accordance with the Klamath Basin Restoration Agreement and the Klamath Hydroelectric Settlement Agreement. 157 Cong. Rec. H7405 (daily ed. Nov. 10, 2011). The bill was referred to the Committee on Natural Resources and the Committee on Energy and Commerce.

Note: The entries below cover state developments since the last issue of Update. The entries are arranged by state, and within each section, entries are further subdivided by subject matter area. To access material previously reported in 2011, visit our list of Cumulative State Developments. For state material reported prior to 2011, visit the ELR Archives.

The Department of Environmental Quality proposed to repeal Ariz. Admin. Code 18.2, Air Pollution Control. Changes would update the state's new source review rules to eliminate the "SIP gap." There will be a public hearing December 18, 2011, and the deadline for comment is January 12, 2012. Seehttp://www.azsos.gov/public_services/Register/2011/44/proposed.pdf.

CALIFORNIA

Toxic Substances:

The Office of Environmental Health Hazard Assessment added estrogen-progestogen used as menopausal therapy, etoposide, etoposide in combination with cisplatin and bleomycin, methyl isobutyl ketone, and MOPP (vincristine-prednisone-nitrogen mustard-procarbazine mixture) to the list of chemicals known to the state to cause cancer. The listing took effect November 4, 2011. Seehttp://www.oal.ca.gov/res/docs/pdf/notice/44z-2011.pdf (p. 1805).

CONNECTICUT

Air:

The Department of Environmental Protection proposed to amend Regulations of Connecticut State Agencies §22a-174-22d, which would establish an intrastate nitrogen oxide (NOx) ozone season cap-and-trade program. The program would replace the Clean Air Interstate Rule NOx Ozone Season Trading Program, §22a-174-22c, which will sunset by federal action on December 31, 2011. There will be a public hearing December 15, 2011, and the deadline for written comment is December 16. Seehttp://www.ct.gov/dep/cwp/view.asp?A=2586&Q=490070.

FLORIDA

Water:

The Department of Environmental Protection proposed to amend 62 Fla. Admin. Code §113.100, Delegations. Changes would partially delegate the Environmental Resource Permit program from the Department of Environmental Protection to the Environmental Protection Commission of Hillsborough County. The delegation would make the Commission responsible for permitting, compliance, and enforcement of permit program applications and activities for such things as construction, alteration, operation, and removal of docks, seawalls, and individual, single-family residences in wetlands and other surface waters within Hillsborough County. The deadline for written comment is November 25, 2011. Seehttps://www.flrules.org/Gateway/View_notice.asp?id=10583784.

The Air Pollution Control Board temporarily amended 326 Ind. Admin. Code §§2.2, 2.3, & 2.7, concerning new source review provisions for particulate matter less than 2.5 microns and the deferral of carbon dioxide emissions from bioenergy and other biogenic sources. Seehttp://www.in.gov/legislative/iac/20111109-IR-326110680ERA.xml.pdf.

MAINE

Wildlife:

The Department of Environmental Protection proposed to amend 06-096 Code Me. Regs. Ch. 305, Permit by Rule Standards, Section 20, concerning activities located in, on, or over high or moderate value inland waterfowl and wading bird habitat, or shorebird nesting, feeding, and staging areas. Changes would allow activities occurring in high- or moderate-value waterfowl and wading bird habitat to be eligible for a permit-by-rule. There will be a public hearing December 1, 2011, and the deadline for comment is December 12. See http://www.maine.gov/sos/cec/rules/notices/2011/110911.html.

The Office of Energy proposed to amend Nev. Admin. Code §701A, related to LEED-based energy tax incentives. Changes establish requirements for applications for partial tax abatements for the renovation of certain buildings or other structures by certain new manufacturing businesses. Seehttp://www.leg.state.nv.us/register/2011Register/R081-11P.pdf.

TENNESSEE

General:

The Environment and Conservation Agency proposed to amend Tenn. Admin. Code §0400.01.01, Fees and Charges for Certain Departmental Services. Changes would add a section regarding an outstanding debt priority. There will be a public hearing January 5, 2012, and the deadline for written comment is January 12. Seehttp://state.tn.us/sos/rules_filings/11-02-11.pdf.

TEXAS

Air:

The Commission on Environmental Quality proposed to amend 30 Tex. Admin. Code §114.622, Diesel Emissions Reduction Incentive Program for On-Road and Non-Road Vehicles. Changes would add criteria for receiving an incentive grant under the subchapter. There will be a public hearing November 29, 2011, and the deadline for comment is December 5. Seehttp://www.sos.state.tx.us/texreg/pdf/backview/1104/1104is.pdf (pp. 7468-72).

The Commission on Environmental Quality proposed to amend 30 Tex. Admin. Code §§114.650 -114.654, Texas Clean Fleet Program. Changes would revise current eligibility criteria and add additional criteria based on recent House legislation. There will be a public hearing November 29, 2011, and the deadline for comment is December 5. Seehttp://www.sos.state.tx.us/texreg/pdf/backview/1104/1104is.pdf (pp. 7472-76).

Energy:

The Commission on Environmental Quality proposed to add 30 Tex. Admin. Code §§114.660 -114.662, Alternative Fueling Facilities Program. The program would provide funding for eligible entities to construct, reconstruct, or acquire a facility to store, compress, or dispense alternative fuels in a nonattainment area. There will be a public hearing November 29, 2011, and the deadline for comment is December 5. Seehttp://www.sos.state.tx.us/texreg/pdf/backview/1104/1104is.pdf (pp. 7476-80).

The Commission on Environmental Quality proposed to add 30 Tex. Admin. Code §§§114.670 - 114.672, Natural Gas Vehicle Grant Program. The program would encourage eligible entities to replace on-road heavy-duty and medium-duty vehicles with natural gas vehicles and to replace on-road heavy-duty and medium-duty vehicle engines with natural gas engines. There will be a public hearing November 29, 2011, and the deadline for comment is December 5. Seehttp://www.sos.state.tx.us/texreg/pdf/backview/1104/1104is.pdf (pp. 7480-83).

Water:

The Commission on Environmental Quality proposed to add 30 Tex. Admin. Code §§36.1 - 36.8, Suspension or Adjustment of Water Rights During Drought or Emergency Water Shortage. The rule would implement recent action by the legislature to allow executive director to temporarily suspend or adjust water rights during times of drought or other emergency shortage of water. There will be a public hearing December 1, 2011, and the deadline for comment is December 5. Seehttp://www.sos.state.tx.us/texreg/pdf/backview/1104/1104is.pdf (pp. 7463-68).

The Water Development Board proposed to amend 30 Tex. Admin. Code §371, Drinking Water State Revolving Fund. Changes would authorize expedited environmental review procedures required for entities seeking funding in emergency situations. The deadline for comment is December 4, 2011. Seehttp://www.sos.state.tx.us/texreg/pdf/backview/1104/1104is.pdf (pp. 7483-86).

VIRGINIA

Hazardous & Solid Waste:

The State Board of Health amended 12 Va. Admin. Code §5.613, Regulations for Alternative Onsite Sewage Systems. Changes delete the requirement that owners have a relationship with a licensed operator for the purpose of providing operation and maintenance. The amendments take effect December 7, 2011. Seehttp://legis.state.va.us/codecomm/register/vol28/iss05/v28i05.pdf (pp. 458-72).

Water:

The State Board of Health amended 12 Va. Admin. Code §5.590, Waterworks Regulations. Changes pertain to groundwater sanitary surveys, source water monitoring for E. coli, and compliance monitoring to ensure the removal or inactivation of at least 99.99 percent of viruses. The amendments take effect December 7, 2011. Seehttp://legis.state.va.us/codecomm/register/vol28/iss05/v28i05.pdf (pp. 338-457).

European politicians will renew their debate this week on raising the target for carbon emission cuts as the bloc plans for international climate change talks in Durban. Some politicians and campaigners have said that the minimum target should be a 30 percent reduction by 2020, but earlier this year Poland blocked an attempt to raise the goal to 25 percent. "Already we have a 17.6 percent reduction in 2012," said Jo Leinen, chairman of the European Parliament's environment committee. "Twenty percent is not really an objective at all." The debate comes in the midst of a plunging price for carbon, as an economic slump and oversupply of permits drive down demand. December 2012 futures hit a 33-month low of 9.84 euros earlier in November, and analysts say the market will be oversupplied by millions of permits for the next several years. Supporters of increased targets, including the renewable energy industry, say that a higher target could revive permit prices. However, fossil fuel dependent Eastern European economies have voiced concern about the effect on their economies of higher carbon prices and the cost of installing emissions-free technology. Overall, the bloc accounts for about 11 percent of global emissions. For the full story see http://www.reuters.com/article/2011/11/11/us-europe-emissions-f-idUSTRE7AA2X120111111?type=GCA-GreenBusiness and http://www.reuters.com/article/2011/11/11/us-carbon-poll-f-idUSTRE7AA37620111111?type=GCA-GreenBusiness.

CHINESE AIRLINES TO SUE OVER EU EMISSIONS TRADING SCHEME

Four major Chinese airlines are set to jointly sue the European Union over its plans to charge carriers for carbon emissions, an official with the country's industry group announced last week. "There is no way the emission charge can be justified. It violates the basic principles of international law and infringes on other nations' sovereignty," said Cai Haibo, deputy secretary-general with China Air Transport Association. The Chinese suit would differ from one launched by U.S. airlines in the European Court of Justice, which focused on the jurisdiction of EU regulators applying the emissions trading scheme to foreign carriers. Instead, the Chinese suit would challenge the plan under the Kyoto Protocol, which distinguishes between the efforts required from developing and developed nations. EU climate commissioner Connie Hedegaard has said that the legislation is compliant with international law, and that the measures would add six to twelve euros ($8-16) to ticket prices for transatlantic flights. However, Chinese airlines estimate that it will add Rmb300, roughly $47, to flights between China and Europe. For the full story, see http://www.businessweek.com/news/2011-11-11/china-may-challenge-eu-over-aviation-emissions-by-year-end.html and http://www.businessgreen.com/bg/news/2124371/chinese-airlines-eu-court-emissions-trading. For earlier news on the ETS, see http://elr.info/UPDATE/archive/update41-31.cfm#international.

COURT FINES FRENCH ENERGY GIANT 1.5 MILLION EUROS

A French court has fined energy company EDF 1.5 million euros ($2 million) and jailed two staff members for hiring a security firm to spy on Greenpeace campaigners during an effort to build nuclear reactors. The court also awarded Greenpeace 500,000 euros ($700,000) in damages. The campaign targeted one of the European Pressurized Water Reactors, which is being built on the Normandy coast and is similar to the ones that EDF hopes to bring to the United Kingdom. EDF and its contractors tout the power and safety features of the reactors, but two in construction in Finland are behind schedule and over budget. Tom Burke, former head of Friends of the Earth UK, said that the future of EDF's plans to sell nuclear power to the world depends on Britain paying to build new reactors. EDF is expected to appeal the decision. For the full story, see http://www.bbc.co.uk/news/science-environment-15683090 and http://www.guardian.co.uk/environment/2011/nov/10/edf-spying-greenpeace.